1 Va. Dec. 600 | Va. | 1886
delivered the opinion of the court.
This is an action for malicious prosecution. The case comes before us on an exception to an instruction given on the trial of the casein the court below, and presents for our determination the question whether a judgment of conviction, which has been reversed on appeal, is to be regarded as conclusive or prima facie evidence of the existence of probable cause for the malicious prosecution.
This same question was passed upon by this court in the recent case of Womack v. Circle, 32 Gratt. 324, where a; majority of the court held that the conviction was conclusive of the existence of probable cause ; but after careful consideration of the subject we have reached the conclusion that, upon principle as well as authority, the minority of the judges were right, and that such conviction must be regarded as prima facie evidence of probable cause.
The ground upon which the cases which hold the contrary doctrine are rested is that the judgment of conviction is evidence of such high and conclusive character that it constitutes an estoppel which concludes all further enquiry into the facts and circumstances of the case. It leaves entirely out of view the facts that this very judgment may have been obtained through the fraud of the prosecutor, the ignorance and incompetence of the justice, and gives to a judgment which has been reversed and vacated the same force and effect as a judgment which has never been reversed or assailed. It not only ignores one of the cardinal doctrines applicable to estoppels, namely, that all estoppels must be mutual, but it violates the principle that the records of the proceedings in a criminal trial are never to be taken as conclusive of the facts upon which it is based in a civil action. For these reasons we regard any rule which would make such a judgment conclusive evidence of probable cause, as was said by the supreme court of Iowa, in Moffett v. Fisher, 47 Iowa R.
Judgment reversed.
